First-grader tests ban on religion in class

As a reward for being a good reader, Zachary Hood was told he could read a story of his choice to his first-grade class. So the New Jersey youngster chose one of his favorite narratives, the biblical tale of Jacob and Esau.

But his teacher balked, feeling a Bible story wouldn't be appropriate in a public-school classroom.

The result is an unusual lawsuit, brought on behalf of a youth who hadn't yet lost his baby teeth, that may redefine the wall separating church and state.

While many legal challenges in recent years have succeeded in keeping religion out of the classroom, this one is seeking to bring a snippet of the Scriptures in.

Thus, it is being closely watched across the country as a test of whether school districts, in their attempt to avoid legal action from the ACLU and other groups, have now gone too far in barring religious material from schools.

At the same time, the case underscores the enduring tension between a teacher's right to supervise assignments and a student's right to express individual initiative.

"Those are two claims of very high order in the realm of academic freedom," says Robert O'Neil, director of the Thomas Jefferson Center for Protection of Free Expression at the University of Virginia. "It's about as poignant a conflict as I've ever seen."

Zachary's parents filed the lawsuit against his former teacher and the Medford, N.J., public school system. At the time - more than two years ago - a federal district court upheld the teacher's right to decide what belonged in her classroom.

Now the case sits before a federal appeals court in Philadelphia, and some are predicting it could end up before the US Supreme Court. A ruling is expected within the next 90 days.

The dispute highlights how far American public schools are from having any kind of comfort zone when it comes to the inclusion of religious material in classrooms.

Let the teacher decide

In this case, those who want to maintain a strict separation between church and state argue that stripping teachers of their freedom to determine what's appropriate in class would set a dangerous precedent. They support the original court decision.

"Is the teacher now devoid of the ability to decide what's going to be read to the class?" asks Marc Stern, an attorney who filed a friend-of-the-court brief on behalf of the Washington-based Americans United for Separation of Church and State.

Especially at the first-grade level, argues Mr. Stern, a teacher must have discretion. He asks what would happen if Zachary wanted to read "Heather Has Two Mommys" - a controversial children's book about a family with lesbian parents. "How would the evangelical Christian parents in the district have felt about that?"

In addition, Stern says, it's important to consider the rights of the other children in the class not to hear a story they may have found uncomfortable.

The teacher would have allowed Zachary to read the story privately to her. But the parents wanted it read aloud to the class - something that critics like Stern contend goes too far.

"The right to free speech does not include the right to require an audience," he says.

But others argue that this represents a misreading of constitutional law when it comes to the right of free religious speech. They also say schools have become too sensitive on anything to do with religion.

"The school is hiding behind the mistaken assumption that Zachary sharing his favorite story with the class would be the equivalent of prayer," says Eric Treene, an attorney with the Becket Fund for Religious Liberty, which is representing the Hoods in their appeal. "The government requires the school to be neutral to religion and this is being hostile to religion."

As it turns out, the version of the story that Zachary wanted to read is simply the tale of two brothers who quarrel and then make up. It mentions neither God nor the Bible. And, as Mr. Treene points out, "All the other children were allowed to read their favorite stories."

Still, if schools seem skittish when it comes to religion in the classroom, it perhaps shouldn't be surprising. The US Department of Education did recently put out guidelines that uphold the right of teachers to include religious material in public-school curriculum - as long as the presentation includes no judgment on the value or veracity of the religion involved.

But the courts have been ambiguous. A court decision in a 1995 case similar to the one in New Jersey took a clear stand for the rights of the teacher. When ninth-grader Brittney Settle wanted to write about the life of Jesus in her English class in Dixon, Tenn., the teacher told her she couldn't and flunked her when she refused to pick another topic.

What courts have ruled

The teacher in that case had a right, determined a federal appeals court in Cincinnati, to say that she was uncomfortable grading a paper dealing with Jesus.

And yet a more recent ruling by a federal judge in New York stated that a school had violated the First Amendment rights of Roman Catholic students by giving them an assignment that involved making paper cutouts of a Hindu god.

Understandably, schools are scared of lawsuits, says Mr. O'Neil, and many have chosen to pursue "an overly sensitive path of avoidance" by simply keeping religions of all kind out of the classroom.

But as the Hood case shows, that won't insulate districts from being sued. Indeed, Treene of the Becket Fund warns that trying to keep religion out of schools is exactly the policy groups like his are going to fight.

"Schools are so afraid of religion that they just wipe out everything," he says, hoping the New Jersey case sends a message - that "it's not a safe harbor to just avoid religion altogether."

Ironically, the case arises at a time when some believe the appropriate use of religion in the classroom has actually become clearer. Kathy Christie, an analyst with the Education Commission of the States in Denver, says the Department of Education guidelines, coupled with common sense, have allowed many schools to avoid lawsuits.

But, she adds, not every teacher or principal is willing to be patient with the subtle distinctions some cases require. Moreover, despite the government guidelines, many school employees remain divided over what is appropriate.

"If you went to 20 different schools and interviewed five people in each, you'd find it's not a topic where there's much consensus."

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